Citation Nr: 1125391
Decision Date: 07/06/11 Archive Date: 07/14/11
DOCKET NO. 10-06 041 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada
THE ISSUES
1. Entitlement to non-service-connected burial benefits, to include a plot or interment allowance.
2. Entitlement to non-service-connected disability pension benefits, for accrued benefits purposes.
3. Entitlement to special monthly pension based on the need for aid and attendance, for accrued benefits purposes.
ATTORNEY FOR THE BOARD
Michael T. Osborne, Counsel
INTRODUCTION
The Veteran had active service from June 1942 to October 1945. He died in February 2008. The appellant is his son.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part.
REMAND
The appellant has contended that he is entitled to non-service-connected burial benefits, to include a plot or interment allowance, because he used his own personal funds to pay for the burial expenses of his father (the Veteran). The appellant also has contended that he is entitled to receive non-service-connected disability pension benefits and special monthly pension based on the need for aid and attendance, each for accrued benefits purposes, because both of these claims were pending and unadjudicated at the time of the Veteran's death.
With respect to the appellant's burial benefits claim, the Board notes initially that claims for a burial allowance may be executed only by "[t]he individual whose personal funds were used to pay burial, funeral, and transportation expenses." 38 C.F.R. § 3.1601(a)(1). Likewise, 38 C.F.R. § 3.1600(a)(2)(ii) provides that a claim for a plot allowance may be executed by "[t]he person(s) whose personal funds were used to defray the cost of the plot or interment expenses." Where a Veteran's death is not service-connected, a burial allowance to cover the burial and funeral expenses, as well as the expense of transporting the body to the place of may be payable, but only under certain circumstances. 38 U.S.C.A. § 2302(a); 38 C.F.R. § 3.1600(b) (2010). Specifically, if the cause of a Veteran's death is not service- connected, entitlement is based upon the following conditions: at the time of death, the Veteran was in receipt of pension or compensation; the Veteran had an original claim for either benefit pending at the time his or her death for which there was evidence available on the date of death to support the award for compensation or pension; the Veteran had a reopened claim where there is sufficient prima facie evidence of record on the date of death to show entitlement; the deceased was a Veteran of any war or was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty, and there is no next of kin and the Veteran's estate funds are insufficient to cover expenses; or the Veteran dies from nonservice-connected causes while properly hospitalized by VA in a VA or non-VA facility. See 38 C.F.R. §§ 3.1600(b) and (c) (2010).
With respect to the appellant's s accrued benefits claims, the Board notes that, in general, upon the death of an individual receiving benefit payments, certain persons shall be paid periodic monetary benefits to which that individual was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid for a period not to exceed 2 years, based on existing rating decisions or other evidence that was on file when the Veteran died. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a); Jones v. Brown, 8 Vet. App. 558 (1996). Only evidence contained in the claims file at the time of the Veteran's death, or certain VA and service department records considered constructively in the claims file at that time, may be considered in adjudicating a claim for accrued benefits. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993).
With respect to the accrued benefits claim for special monthly pension based on aid & attendance, the Board notes that a Veteran is in need of regular aid and attendance if he is helpless or is so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351(b) (2010). A Veteran will be considered in need of regular aid and attendance if he is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or is a patient in a nursing home because of mental or physical incapacity; or establishes a factual need for aid and attendance under certain criteria in VA regulations. 38 U.S.C.A. § 1502(b) (West 2002); 38 C.F.R. § 3.351(c) (2010).
Under the provisions of 38 C.F.R. § 3.352(a), the criteria to show factual need for aid and attendance include the inability of the Veteran to dress or undress himself; to keep himself ordinarily clean and presentable; whether he requires frequent adjustment of any special prosthetic or orthopedic appliances; inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity that requires assistance on a regular basis to protect himself from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a).
"Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance; not that there be a constant need. Determinations that the Veteran is so helpless as to be in need of regular aid and attendance will not be based solely on an opinion that the Veteran's condition is such that it would require him to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a) (2009); Turco v. Brown, 9 Vet. App. 222, 224 (1996).
Increased pension also is payable to a Veteran who is entitled to pension under 38 U.S.C.A. § 1521 and who is not in need of regular aid and attendance if, in addition to having a single permanent disability rated 100 percent disabling under the Schedule for Rating Disabilities (not including ratings based upon unemployability under § 4.17 of this chapter) the Veteran: (1) has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or (2) is "permanently housebound" by reason of disability or disabilities. The "permanently housebound" requirement is met when the Veteran is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical area and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. 1502(c), 1521(e) (West 2002); 38 C.F.R. § 3.351(d) (2010).
A review of the claims file shows that the Veteran filed claims for non-service-connected disability pension benefits and special monthly pension based on the need for aid and attendance in July 2007. It appears that, although a rating decision was promulgated in December 2007, it was not issued because the Veteran had not provided information regarding his interest income to VA. Unfortunately, the Veteran died in February 2008. The appellant then filed his claims for burial benefits, to include a plot of interment allowance, and for non-service-connected disability pension benefits and special monthly pension based on the need for aid and attendance, each for accrued benefits purposes, in April 2008. A review of the claims file indicates that no VCAA notice was provided to the appellant prior to adjudication of his claims in the currently appealed rating decision issued in October 2008.
The Board observes that the Veteran's death in February 2008 did not obviate the need for the RO to provide VCAA notice to the appellant. The Board also observes that, in February 2009, the RO sent the Veteran a letter in which it explained the reasons for the denial of the accrued benefits claim for special monthly pension. The RO explained that the Veteran had not provided VA with information regarding his interest income prior to his death so no determination could be made as to his entitlement to special monthly pension. The RO did not address either the accrued benefits claim for non-service-connected disability pension benefits or the burial benefits claim in the February 2009 letter. It appears that the February 2009 letter was issued in response to questions raised by the appellant in his notice of disagreement. In any event, the Board finds that a harmful notice error has occurred and remand is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Although an accrued benefits claim must be based on the evidence of record at the time of the Veteran's death, VA still has an obligation to inform the claimant of what is necessary in order for his claims to be granted. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Thus, on remand, the appellant should be provided appropriate VCAA notice on his claims of entitlement to burial benefits, to include a plot or interment allowance, and for non-service-connected disability pension benefits and special monthly pension based on the need for aid and attendance, each for accrued benefits purposes.
Accordingly, the case is REMANDED for the following action:
1. Issue appropriate VCAA notice on the appellant's claims of entitlement to non-service-connected burial benefits and for non-service-connected disability pension benefits and special monthly pension based on the need for aid and attendance, each for accrued benefits purposes. A copy of the notice letter should be included in the claims file.
2. Thereafter, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).